Saturday, January 05, 2008

As a Republican, do you find the positions and actions of your party increasingly difficult to defend in light of the principles upon which the party claims to continue to stand for, namely, limited government, non-interventionism, and laissez-faire capitalism? Do you find yourself "compromising" your principles election after election, justifying your vote for the party favorite as an earnest effort to avoid putting the next Clinton or Gore in power? The "lesser of two evils" mantra must ring a bell. Have you heard the Republican party-line that they simply "lost their way" during their four-year period of complete control of the federal government? Have you swallowed hard to make yourself believe it? Before you continue further down the path of Republican Party apologism, you owe it to yourself to read on and see how the pieces fit together, forming a far different picture than the one you believe you see.

It is particularly difficult to change the mind of Republican voters who maintain apologist stances in defense of their Party. You have certainly tried in vain to convince a Democrat that their Party ideals are bound to decline into Socialism or worse, Tyranny one day. At some point I imagine you told them that the government has no business being involved in what their Party proposes, that taxes are too high, that spending is too much, our Federal debt is unimaginable, etc. Since I have always operated in some form from the Right, I choose my words carefully and understand how difficult it may be to believe it when I say exactly the same thing to you: Your party's actions have led to socialism, and at worst may in fact lead to outright tyranny one day.

One quote still stands out to me in relation to the difficulty encountered as we begin such an argument. Supreme Court Justice, Oliver Wendell Holmes in 1897 said, “It is in the nature of a man’s mind. A thing which you enjoyed and used as your own for a long time, whether property or opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it.” I speak from experience, as it was I, a Republican supporter of George H.W. Bush in 1990, who was first approached many years ago with the same proposition: post-World War II Republicans have come to share far more with Democrats in principle and action than either Party would care to admit or have widely known. I can say from experience that indeed, the first step is denial. I denied for many years, later took on casual study, and gradually as I built the study came to the same stunning conclusion. In fact, the difference between the Parties is not meaningful. The task before you, the study, the intellectual honesty required of you the reader, is within your ability I am certain. What you must set aside, albeit temporarily, is your allegiance (psychologically and philosophically) to what you believe is truly happening in government, which for years or perhaps many decades, have been imprinted and reinforced by nearly everyone and everything around you: the high school teachers, the professors you had in college, your friends who follow politics, Fox News, ABC, your favorite newspapers, the family members who enjoy discussing ideas, - all have very likely reinforced that there are differences between Democrats and Republicans worth arguing, debating, and fighting over. To them it is this conclusion that is not debatable. But here I sit, telling you quite the opposite.

It is my very sincere hope that for the future of our country you embark on this study yourself and ask difficult questions in pursuit of truth. I am not trying to win a debate here. No tricks to win a point. My pursuit herein is the truth and I ask the same of you. I present facts and evidence and after many books and pages read, stand firm that these facts and evidence point where I say they do. At a minimum, I appeal to your desire to hear a different viewpoint, to critique, discuss, and to learn. I do so in full realization that you are at stage one, denial.

The Contract With America - We Signed, They Didn't

Recall that in 1994 a Revolution swept the United States. It was called the Republican Revolution, complete with the "Contract With America." In January 1995, the change in power swept the Republicans to control the House for the first time in 40 years (from the 1952 election to 1954). In addition to the gain of 54 seats in the House, the pickup of 8 seats in the Senate also helped them gain control of the Senate. But the Republicans weren't done. Strong gains were made in the States as well with a pickup of 12 Governorships giving the Republicans the majority of State Governorships for the first time since 1972. They also gained a total of 472 seats across all of the State Legislatures thus gaining control of 20 State Legislatures from the Democrats and holding a majority of State Legislatures for the first time in 50 years. Republican voters wanted to extend this Revolution: they wanted control of the Presidency. Only with control of both houses and the Executive Branch could real change finally be made. While William J. Clinton won the 1996 campaign, it wasn't long before the Executive Branch was won back by the Republicans in 2000 with George W. Bush at the helm.

After the 2000 election, the dream of Republicans looked to be at hand, until GOP senator Jim Jeffords changed party registration to "Independent" in June 2001. The Senate switched to Republican control after the November 2002 elections, for the first time in decades giving the Republican party control of the federal government. From 2002-2006, the Republicans maintained clear majorities in the Legislative Branch and controlled the Executive Branch. The dream had arrived in its fullest form.

The dream ended in the 2006 elections, when Democrats won both the House of Representatives (233 Democrats, 202 Republicans) and the Senate (49 Democrats, 49 Republicans, and 2 Independents caucusing with the Democrats) as well as the majority of state governorships (28-22). This event may be seen as the end of the Republican Revolution. Maybe it ended before it started. During the twelve-year Revolution of the "party of limited government," the Federal budget shot up from$1.461 Trillion (1994) to $2.6 Trillion (2006).

Let's revisit the Contract With America. One would expect the Contract created by the party of limited government to have clear Constitutional support for each provision: not so. William F. Jasper wrote of the Contract's Constitutional shortcomings just months after it was signed, in a 1995 article entitled "Gingrich's Constitutional Con": http://thenewamerican.com/node/1527 Jasper brought to light provisions such as the "Take Back Our Streets Act." The Republicans felt more Federal money should be spent on beat cops in the nations cities rather than night basketball programs. First, the Contract is silent on the Constitutional support for Federal funding for state and local law enforcement efforts. Secondly, our allegedly small government brethren opted for a new, bloated series of Federal grants to pay for more beat cops. Of course it was sold as "Republicans tough on crime, Democrats weak." And many bought it. A Republican (the Old Right) of many decades ago would have stood up and stopped the unconstitutional flow of money to begin with and by doing so, lowered your taxes. Another example from "Gingrich's Constitutional Con" is the "The National Security Restoration Act." Among other things, it would have lowered U.S. funding of U.N. "peacekeeping" missions to 25% from 32%. Again, the Contract is silent on the Constitutional authority for funding an organization with roots in people like Alger Hiss, but merely sought to placate the Republican masses by reducing (likely temporarily) the funding. Note, that even if this was heralded as a great first step, there was no language questioning the legitimacy of placing U.S. troops or U.S. law under U.N. auspices.

Even an apologist from The Cato Institute, Stephen Moore, concedes that the Contract, on many counts, was a dismal failure, in his article from June, 2004 at www.cato.org titled "Contract Revisited." Moore, a senior fellow at the Cato Institute and president of the Club for Growth, was a staff member for former Rep. Dick Armey (R-Tex.). "It is chic these days to criticize the Contract with America and write it off as a failed revolution. That would be a misreading of history." Really? Here is Mr. Moore being a bit more honest:

"Most impressive of all, the Contract with America budget called for eliminating three whole Cabinet departments: Education, Commerce and Energy... Perhaps Republicans over-promised, but in the end, politics triumphed over good fiscal common sense. Ten years later, most of the useless programs still flourish. Here are some disappointing examples: The Americorps program has grown 181 percent and President Bush wants to expand it further. The Education Department budget has almost tripled since 1995. The Goals 2000 budget has grown from $231 million to $700 million. The wool and mohair subsidy was terminated (hooray) but then resurrected by Congress in 1997 and now spends more money than ever. Amtrak subsidies were supposed to be phased out entirely by the year 2000. But this year the railroad asked for a $2 billion bailout and Congress is likely to grant it."

Did politics triumph over good fiscal common sense? Or perhaps, as you will see later on from Irving Kristol, was this expansion of government largesse and increased encroachment on your freedom part of the plan all along?

(see also "The Grand Old Spending Party" at the Cato Institute: http://www.cato.org/pubs/pas/pa543.pdf

Taking a look at the list, I note the top 3 positions are occupied by Republicans. LBJ narrowly loses to Bush I for the fourth spot (That's four of five spots occupied by big government Republicans). The Heritage Foundation even chimed in on the question of the reality of spending by the Establisment parties:

"Conventional wisdom holds that non-defense discretionary spending has been cut to make room for defense spending increases. Conventional wisdom is wrong. According to OMB, non-defense discretionary outlays – adjusted for inflation – surged by 34 percent between 1999 and 2005. That is the largest six-year expansion since the 1970s. One way to compare current discretionary spending trends is by presidential administration:

Overall discretionary outlays rose 2.3 percent annually under President Clinton, compared to 9.7 percent annually under President Bush. Defense wasvirtually frozen in nominal dollars under President Clinton, and has averaged 12 percent annual growth under President Bush. Non-defense discretionaryoutlays rose 4 percent annually under President Clinton, versus 8 percent annually under President Bush.

Let me re-emphasize that last point: Non-defense discretionary spending has grown twice as fast under President Bush as under President Clinton. Examples ofdiscretionary spending increases between 2001 and 2006 include the following:

Education is up 62 percent, or 10 percent annually; International affairs is up 74 percent, or 12 percent annually; Health research and regulation is up 57percent, or 9 percent annually; Veterans’ benefits are up 46 percent, or 8 percent annually; Science and basic research is up 40 percent, or 7 percent annually. and Overall non-defense discretionary outlays are up 46 percent, or 7.8 percent annually."

HillaryCare vs. Medicare Part D

What began as an outcry against "HillaryCare" in Republican rhetoric turned into the enactment by the same Republicans of another leg of socialized medicine in Medicare Part D (the prescription drug expansion of Medicare orchestrated by Republicans in 2003). Who would have predicted that the smaller government, capitalist, market solution-oriented Party would bring us another step toward socialized medicine when they in fact controlled all three branches? Perhaps they thought we needed another unfunded multi-trillion dollar liability.

A November 2007 study by Columbia University found that the Medicare Part D drug plan cost $32 billion in 2006, its first year of existence. The study concluded that by 2015 the cost would accumulate to $797 billion. Frank Lichtenberg, a co-author of the study, stated: "Our findings do not necessarily mean that the Medicare Part D program is economically inefficient, because there are potential long-term health care savings when people can afford to take necessary medications. However, we need to think carefully about the economic implications of this program, which the federal government will ultimately have to raise taxes to pay for." (emphasis added) http://www.washingtonpost.com/wp-dyn/content/article/2007/11/01/AR2007110101183.html

Of course the review of spending shows that it is not a phenomenon, as the Party would now have and desperately wants you to believe, of the last few Bush years. Indeed, the spending differences between Republicans and Democrats are negligible over many decades as you have seen.

Have voters for Republican candidates been able to depend on the Republican rhetoric that they represent smaller government, lower Constitutional spending, and free-market solutions? Even if we haven't been able to depend on Republicans to deliver Constitutional spending, smaller government, and lower future taxes, perhaps they have delivered in the Judiciary. In Part II of "Are Republicans Conservative?," we will explore the Supreme Court. It is the nomination of conservative Justices that many Republican voters pine for and point to in defense of their votes for, as we have learned in the preceding paragraphs, big-government Republicans.

(If you think a friend, whether Republican, Democrat, or Independent, would enjoy reading this, please send them the address for the blog http://wiconstitutionalist.blogspot.com/ or use the tool below (envelope with arrow) to send this article to a friend.) Knowledge grows when shared.

We hopefully find the reader by this point viewing the "accomplishments" of Republicans in all three branches as more open to debate than when we first started, willing to remain open to a different perspective, and wanting to learn even more. This article, in three parts, is meant only to serve as an appeal to the apologists of the Republican Party for genuine thought, reading, and study, outside of their normal scope. For other readers who see the political landscape for what it is and have already done demonstrable study in the proper areas, these articles hopefully serve to reinforce your considered beliefs.

Pumping Up the Presidency With Signing Statements

Surely the Republicans we elect would at least respect the rule of law put in place by Congress, and not attempt to skirt or rewrite that law at the Executive level. Let's look next at Republicans' history with signing statements. A signing statement is a written proclamation issued by a government's executive branch that accompanies the signing of a law passed by the government's legislature. Historically their main use is for rhetorical or political proclamations. An excellent primer article on signing statements by John W. Dean is here: http://writ.news.findlaw.com/dean/20060113.html

Bush's use of signing statements has raised eyebrows among legal and constitutional scholars alike. "There is an ongoing controversy concerning the extensive use of signing statements by President George W. Bush to modify the meaning of laws. In July 2006, a task force of the American Bar Association described the use of signing statements to modify the meaning of duly enacted laws as "contrary to the rule of law and our constitutional system of separation of powers." (wikipedia.org) "Article I, Section 7 (in the Presentment Clause) empowers the president to veto a law in its entirety, or to sign it. Article II, Section 3 requires that the executive "take care that the laws be faithfully executed."

Here is an excerpt from the Dean article cited above: "Phillip Cooper is a leading expert on signing statements. His 2002 book, By Order of the President: The Use and Abuse of Executive Direct Action, assesses the uses and abuses of signing statements by presidents Ronald Reagan, George H.W. Bush and Bill Clinton. Cooper has updated his material in a recent essay for the Presidential Studies Quarterly, to encompass the use of signing statements by now-President Bush as well.

By Cooper's count, George W. Bush issued 23 signing statements in 2001; 34 statements in 2002, raising 168 constitutional objections; 27 statements in 2003, raising 142 constitutional challenges, and 23 statements in 2004, raising 175 constitutional criticisms. In total, during his first term Bush raised a remarkable 505 constitutional challenges to various provisions of legislation that became law.

That number may be approaching 600 challenges by now. Yet Bush has not vetoed a single bill, notwithstanding all these claims, in his own signing statements, that they are unconstitutional insofar as they relate to him.

Rather than veto laws passed by Congress, Bush is using his signing statements to effectively nullify them as they relate to the executive branch. These statements, for him, function as directives to executive branch departments and agencies as to how they are to implement the relevant law.

Bush has quietly been using these statements to bolster presidential powers. It is a calculated, systematic scheme that has gone largely unnoticed (even though these statements are published in the Weekly Compilation of Presidential Documents) until recently, when President Bush's used a signing statement to attempt to nullify the recent, controversial McCain amendment regarding torture, which drew some media attention.

Generally, Bush's signing statements tend to be brief and very broad, and they seldom cite the authority on which the president is relying for his reading of the law. None has yet been tested in court. But they do appear to be bulking up the powers of the presidency. Here are a few examples:

Suppose a new law requires the President to act in a certain manner - for instance, to report to Congress on how he is dealing with terrorism. Bush's signing statement will flat out reject the law, and state that he will construe the law "in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."

The upshot? It is as if no law had been passed on the matter at all.

Or suppose a new law suggests even the slightest intrusion into the President's undefined "prerogative powers" under Article II of the Constitution, relating to national security, intelligence gathering, or law enforcement. Bush's signing statement will claim that notwithstanding the clear intent of Congress, which has used mandatory language, the provision will be considered as "advisory."

The upshot? It is as if Congress had acted as a mere advisor, with no more formal power than, say, Karl Rove - not as a coordinate and coequal branch of government, which in fact it is.

As Phillip Cooper observes, the President's signing statements are, in some instances, effectively rewriting the laws by reinterpreting how the law will be implemented. Notably, Cooper finds some of Bush's signing statements - and he has the benefit of judging them against his extensive knowledge of other President's signing statements -- "excessive, unhelpful, and needlessly confrontational.""

More on Signing Statements

Edward Lazarus explores further in this article the use of singing statements in "interpreting away constraints on Executive Power." http://writ.news.findlaw.com/lazarus/20060105.html

Jennifer Van Bergen addressed signing statements in the broader context of the Bush's Administration's embrace of the so-called "unitary executive" concept, the claim that a president totally controls the executive branch and has standing equal to the courts in interpreting the constitution as it relates to his branch. http://writ.news.findlaw.com/commentary/20060109_bergen.html

I ask the reader to tell me now, what protection on freedom and the rule of law and personal rights have been protected by electing Republicans from the Establishment?

Conclusion

How does it happen then that the Republican Party finds itself morphed into a Leftist organization? How does a Party that once would have cautioned, as the Founders did, about fighting wars in foreign countries now advocate democratic change in other sovereign nations with hundreds of bases in foreign lands? The Department of Defense Fiscal 2007 Real Property Inventory lists 108,356 buildings on 823 foreign base sites in 39 foreign countries (see http://www.defenselink.mil/pubs/BSR_2007_Baseline.pdf). Dare we do this down the barrel of a gun? At what point, if we are willing to commit atrocities abroad on citizens of other sovereign countries, have we lost the moral compass? What if China wanted regime change here and marched down our streets? Are the warnings of the Old Right, that militarism leads to loss of freedom and increasing big government bureaucracy at home accurate? Is $1 trillion and counting in Iraq worth it? How about estimates, albeit the worst ones, that 600,000-1.2 million Iraqi civilians have suffered the ultimate liberation - death? How about the well over 3,000 brave U.S. service men and women dead in the War? What of the 100,000 or more Serbs dead at the hands of the Bosnian Muslims that we ironically supported under George H.W. Bush and William Clinton? What of supporting Iraq vs. Iran in the 1980-1988 only to fight them just three years later and again now? I am sure you can recall on your own countless other foreign policy gaffes in the past 60+ years. Note too the general continuance of foreign policy from Democratic administration to Republican administration. Which Democratic frontrunner is advocating a full pullback from Iraq? What year was the Korean War? How many troops do we have inside that sovereign nation today?

Perhaps there is something to what much has been written about: Neoconservatives, who began appearing on the scene in the 1950's are intellectual heirs to Leon Trotsky - the Ukrainian-born Bolshevik revolutionary and Marxist theorist. Many have compared the neoconservatives and liberals willingness to go abroad and expand the military complex to Trotsky's belief in permanent revolution abroad and socialism at home (some modicum of economic growth is necessary to continue funding their worldview and therefore outright and total communism was not necessarily desired by Trotsky).

Irving Kristol, the "god-father" and one of the founders of neoconservatism, stated five basic policies of neoconservatism that distinguish it from other "movements" or "persuasions". These policies, he claimed, "result in popular Republican presidencies":

Taxes and Federal Budget: "Cutting tax rates in order to stimulate steady economic growth. This policy was not invented by neocons, and it was not the particularities of tax cuts that interested them, but rather the steady focus on economic growth." In Kristol's view, neocons are and should be less concerned about balancing fiscal budgets than traditional conservatives: "One sometimes must shoulder budgetary deficits as the cost (temporary, one hopes) of pursuing economic growth." Size of Government: Kristol distinguishes between Neoconservatives and the call of traditional conservatives for smaller government. "Neocons do not feel ... alarm or anxiety about the growth of the state in the past century, seeing it as natural, indeed inevitable."Traditional Moral Values: "The steady decline in our democratic culture, sinking to new levels of vulgarity, does unite neocons with traditional conservatives". Here Kristol distinguishes between traditional conservatives and libertarian conservatives. He cites the shared interest of Neocons and Religious Conservatives in using the government to enforce morality: "Since the Republican party now has a substantial base among the religious, this gives neocons a certain influence and even power."Expansionist Foreign Policy: "Statesmen should ... distinguish friends from enemies." And according to Kristol, "with power come responsibilities ... if you have the kind of power we now have, either you will find opportunities to use it, or the world will discover them for you."National Interest: "the United States of today, inevitably ... [will] feel obliged to defend ... a democratic nation under attack from nondemocratic forces ...that is why it was in our national interest to come to the defense of France and Britain in World War II ... that is why we feel it necessary to defend Israel today."

If you read those five carefully, it should sound familiar. We are living it. Indeed, a careful study of the Old Right versus what has been sold as Conservatism over the past few decades will show you there was a hijacking and no one told you. Or we didn't listen. Or we didn't bother reading to find out. This article has been just the tip of the iceberg. I hope you don't stop here.

Next Steps?

If this article struck any chord whatsoever, what can you do?

Continue to educate yourself. A great place to start is The New American magazine. They have a great online archive, search tool, and topic index. http://www.thenewamerican.com/

Check to see how your Senators and Representatives actually vote. You are likely to be surprised how few Congressmen and Congresswomen actually uphold the oaths they took, ignoring (or ignorant?) of the Constitution, voting you into citizenship within a Socialist state at best, in spite of their campaign rhetoric. Learn to separate their rhetoric from their actual voting record. For a comprehensive 10-page review of the 109th Congress, please visit: http://thenewamerican.com/files/ci-109-4.pdf

For a look at the current 110th Congress please visit: http://www.thenewamerican.com/files/fi-110-1.pdf

These Indexes of Congressional votes are complete with a brief summary of the bill. A "+" after your Congressman's name was a vote which is consistent with a strict Constitutionalist view. A "-" is a vote recorded as inconsistent with the Constitution. Please keep in mind that attention to your Congressmen is more important in many ways due to their legislative means.

When you vote for someone at the local, state, or federal level and with your new knowledge, you begin to realize they are consistently voting for unconstitutional items, hold their feet to the fire. Contact their office by phone, email, or mail. If your Representatives or Senators make trips back to your home state for "town hall meetings" or such, go, and ask the hard questions. Why continue to allow them to pose as conservatives when we all know better?

As you continually discover, you may well want to increase and expand your learning to books to learn such things as how the United Nations came to be, what happened to Old Right Conservatism, the history of the EU and what is the NAU (the "North American Union," in store for the U.S. based on the European Union concept), and gain a truer understanding of liberty and why you have seen it consistently withered by both Parties despite your votes for "small-government" Republicans. These are just a few of many examples. You may also consider getting together like-minded true conservatives and run for office.

We must only support people who are committed to defending and preserving constitutional government. A socialist Republican is no better than a socialist Democrat. Why believe that electing big-government Republicans is a genuine alternative to electing big-government Democrats?

(If you think a friend, whether Republican, Democrat, or Independent, would enjoy reading this, please send them the address for the blog http://wiconstitutionalist.blogspot.com/ or use the tool below (envelope with arrow) to send this article to a friend.) Knowledge grows when shared.

In Part One we used domestic discretionary spending as our metric and discovered that when the dream came of both the Legislative and Executive branches being controlled by their Party, the Republicans grew government faster than the Democrats had been able to when they controlled both the Legislature and Executive branch. Let's now turn our attention to the Judiciary Branch.

The Supreme Court - Republican Nominees Without Conservatives

"But even if the Republicans are big spenders, we need to elect someone who will appoint conservative judges," says the apologist. Among the Justices serving on the Court during the Republican Revolution, how many were put on the bench by Republicans and how many by Democrats? The Supreme Court composition from 1994-2005 was William J. Rehnquist (Richard Nixon), John Paul Stevens (Gerald Ford), Sandra Day O'Connor (Ronald Reagan), Antonin Scalia (Ronald Reagan), Anthony Kennedy (Ronald Reagan), David Souter (George H.W. Bush), Clarence Thomas (George H.W. Bush), Ruth Bader Ginsburg (William Clinton), and Stephen Breyer (William Clinton). During the time of the Republican Revolution, we see that the Republicans had more of "their guys" on the Supreme Court than the Democrats by a 7-2 margin.

Yet, in the eyes of many, the Court was known to be "evenly divided" in this period, perhaps with a slight conservative slant. The well-known conservative block consisted of Rehnquist, Scalia, and Thomas; the liberals were Breyer, Ginsburg, and Souter; with Stevens, O'Conner, and Kennedy being the "moderates." Are we to believe that the Republican Presidents Ford, Reagan, and Bush were unaware that the Justices they were nominating were "moderate" at best, and often part of the liberal voting block? One would think, if this reason to vote for the Republicans holds water, the exclamation would be, "Look! We have been able to nominate 7 conservative Justices." Yet, if the Establishment Republicans couldn't get it right on 5 of 7 tries, are we really getting what we are voting for by voting for Republican Presidents?

By my count, as far back as the early Warren Burger Court in 1970-1971, Republican nominated Justices have held at least a 5-4 margin over Justices nominated by Democrats. Even as far back as the 1981-1986 Warren Burger Court, the Republican nominees had a firm 7-2 lead over nominees to the Court by Democrats. To a large extent, the Jury, so to speak, remains out on George W. Bush nominated Justices Samual Alito and John Roberts. They replace Rehnquist and O'Conner, thus maintaining the 7-2 margin.

In sum, given a nearly forty year run of more Republican nominated Justices sitting versus Democrat nominated Justices, which direction has the slope pointed?

I have heard it said that even if the Establishment Republicans are big government spenders at best, it will be worth their continued election for the Supreme Court nominations they are able to make. First, the statistics above certainly cast doubt on the ability of Republican Presidents to carry out their voters' wishes. Second, the statement of relative worth waves the white flag on the issues of unconstitutional spending, the addition of trillions of dollars (Trillions!) in unfunded liabilities on the back of U.S. taxpayers, the further encroachment into education by the federal government, government spending increasing far greater than inflation, another illegal war, to name just a few, are worth it, all in the name of getting some nominees that history (we have just learned) shows us might be conservative.

I could ask a simpler question. We can see that during this entire time period of 1994-2006, all three branches of the federal government, the Executive, the Legislative, and now, the Judicial Branch, have been put in power by Republican voters seeking conservative principles, who favor smaller government, individual rights, and defense of the Constitution. The result? Who among us believes our federal government has shrunk as a result of less spending, our state has less debt, we count on lower future taxes due to the reduction in future unconstitutional liabilities, and that our freedom has been resolutely expanded? Anyone? A truly unusual event when our allegedly capitalistic, limited-government, Constitutionalists have controlled most of the federal government for twelve years.

The Rollback of Judicial Activism?

What significant Constitutional precedents could be pointed to given the long run of a Supreme Court dominated by Justices nominated by Republicans? In "Has the Court Moved Right?" http://thenewamerican.com/node/4822 the author cites a New York Times article which observes that the new Court, while heralded as "the Supreme Court that conservatives had long yearned for and that liberals feared," has managed to overturn only three precedential opinions, two of which related to missed filing deadlines.

The article continues: "...when ruling on federal environmental controls in Massachusetts v. EPA, none of the “conservative” justices questioned the constitutionality of the federal Clean Air Act. It was a golden opportunity to declare that the Constitution does not authorize Congress to regulate the environment. Not a single justice addressed that opportunity. In fact, in a 5-4 decision a majority of them concluded that the Environmental Protection Agency not only possessed the authority to regulate greenhouse gases in auto emissions but must regulate those gases unless it provided a scientific basis for not regulating."

"The court’s 5-4 decision against partial-birth abortion is viewed as a swing to the right. But this ruling must be kept in perspective: it kept on the books a federal law against a form of infanticide (killing a baby while in the process of being born) without challenging the infamous Roe v. Wade decision legalizing abortion on demand."

Abortion

Pro-choice and Republican voters believe that if only more pro-choice Conservatives are able to be placed on the Supreme Court, the Court could then overturn Roe v. Wade at the Federal level, at the very least throwing the power back to the States. However, a look at the Roe v. Wade Court itself compels one to a different conclusion. The vast majority of voters likely believe as I once did that the Roe v. Wade Court comprised itself of mostly holdovers from FDR, JFK, and LBJ. Yet, at the time of Roe v. Wade, the number of Republican-nominated Justices outnumbered Democrat-nominated Justices by a 5-4 margin. In fact, in spite of the 5-4 margin enjoyed by Republican nominated "conservatives" the vote itself was 7-2, with only Rehnquist (Nixon) and White (JFK) dissenting. Yet, how many millions of pro-life citizens of any Party affiliation have cast votes for Republican presidential candidates and senators using the abortion issue as a litmus test? Indeed, it is arguably the largest question of contention during confirmation hearings and a prominent question if running for legislative office at virtually any level of government. Perhaps it is time for voters who vote strongly Republican due to this issue to rethink voting blindly based on their candidates rhetoric, without looking at the results such candidates have achieved.

Others, including author, talk-radio host, and pastor Chuck Baldwin have asserted that the vast majority of Republicans are full of hot air when they make claim to their pro-life stance. An article Mr. Baldwin wrote on the topic can be found here: http://www.chuckbaldwinlive.com/c2007/cbarchive_20071130.html

In the article Baldwin points out a piece of legislation introduced by Ron Paul (R-TX), the Sanctity of Life Act. In introducing the legislation in 2005 and 2007, Rep. Paul is recognizing a check on the Judiciary provided for in Article III, Section 2 of the Constitution. "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." The bill would recognize that life begins at conception and as such nullify the Roe v. Wade decision throwing the authority back the each individual State to decide. Among all the so-called pro-life Republicans in the House, how many came out with Ron Paul to sign as a co-sponsor? Four. Did pro-life McCain, a very senior Senate member, push to introduce it in the Senate? Why in 2005, with the Legislature resolutely in control of the Republicans did a Bill seemingly this important to their constituency and these Republican lawmakers not even make it out of sub-committee for a vote?

Rise of the Justice Department, the Decline of Freedom

It also occurs to me that another important cog (and all too often ignored in the discussion of Courts and the law) to consider is that position which comes with the job description of "chief law enforcement officer of the United States government" - the U.S. Attorney General. First up, John Ashcroft, George W. Bush's nominee. Surely a Republican U.S. Attorney General would uphold the Republican principles of limiting government intrusion into the personal lives of U.S. citizens. Yet, Attorney General Ashcroft spent countless hours promoting the Patriot Act during his tenure. If you are not already familiar with the gross suspensions of personal liberties that the Patriot Act allows, Ron Paul (R-TX) provided the following summary on May 2, 2005:

"Many of the most constitutionally offensive measures in the Act are not limited to terrorist offenses, but apply to any criminal activity. In fact, some of the new police powers could be applied even to those engaging in peaceful protest against government policies. The bill as written defines terrorism as acts intended “to influence the policy of a government by intimidation or coercion.” Under this broad definition, a scuffle at an otherwise peaceful pro-life demonstration might subject attendees to a federal investigation. We have seen abuses of law enforcement authority in the past to harass individuals or organizations with unpopular political views. Congress has given future administrations a tool to investigate pro-life or gun rights organizations on the grounds that fringe members of such groups advocate violence. The Patriot Act waters down the Fourth amendment by expanding the federal government's ability to use wiretaps without judicial oversight. The requirement of a search warrant and probable cause strikes a balance between effective law enforcement and civil liberties. Any attempt to dilute the warrant requirement threatens innocent citizens with a loss of their liberty. This is particularly true of provisions that allow for issuance of nationwide search warrants that are not specific to any given location, nor subject to any local judicial oversight. The Act makes it far easier for the government to monitor your internet usage by adopting a lower standard than probable cause for intercepting e-mails and internet communications. I wonder how my congressional colleagues would feel if all of their e-mail headings and the names of the web sites they visited were available to law enforcement upon a showing of mere “relevance.” It's easy for elected officials in Washington to tell the American people that government will do whatever it takes to defeat terrorism. Such assurances inevitably are followed by proposals either to restrict the constitutional liberties of the American people or spend vast sums from the federal treasury. We must understand that politicians and bureaucrats always seek to expand their power, without regard to the long-term consequences. If you believe in smaller government, ask yourself one simple question: Does the Patriot Act increase or decrease the power of the federal government over your life? The answer is obvious to those who understand that freedom cannot be exchanged for security."

In sum, the Patriot Act, among other things:Expanded the federal government's ability to use wiretaps without judicial oversight; Allowed nationwide search warrants non-specific to any given location, nor subject to any local judicial oversight; Made it far easier for the government to monitor private internet usage; Authorized “sneak and peek” warrants enabling federal authorities to search a person’s home, office, or personal property without that person’s knowledge; and Required libraries and bookstores to turn over records of books read by their patrons.

For more on the dangers inherent in the Patriot Act, please read two articles: "Ashcroft's Reign of Terror"http://www.antiwar.com/justin/?articleid=2020 ("This man is the harbinger of the American Counterrevolution: the liberties the patriots of 1776 fought and died to establish are being systematically disestablished by John Ashcroft, a Torquemada for our times.")and "Why Ashcroft Must Go"http://www.antiwar.com/justin/?articleid=2667 (How the Patriot Act was used against Brandon Mayfield. "Using the power granted them by the "PATRIOT" Act, FBI agents broke into his house and conducted a search in his absence, rifling through his kids' Spanish homework, and leaving the doors double-bolted - which immediately alerted the Mayfield family that someone had been on the premises.")

Et tu Alberto?

Let's move on to Alberto Gonzales, the next George W. Bush appointee, who came close to impeachment proceedings, at least in part due to his role in the dismissal of seven US Attorneys from the US Department of Justice. Gonzales compounded his problems when he was frequently caught in inconsistent testimony as well as demonstrating a remarkably poor memory in regards to the matter.

From the Wikipedia.org entry on Alberto Gonzales: On January 18, 2007, Gonzales was invited to speak to the Senate Judiciary Committee, where he shocked the committee's ranking member, Arlen Specter of Pennsylvania, with statements regarding the right of habeas corpus in the United States Constitution. Habeas Corpus is the name of a legal action, or writ, through which a person can seek relief from unlawful detention of themselves or another person. The right of habeas corpus - or rather, the right to petition for the writ - has long been celebrated as the most efficient safeguard of the liberty of the subject. An excerpt of the Spector-Gonzales exchange follows:

GONZALES: The fact that the Constitution—again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But it’s never been the case, and I’m not a Supreme—SPECTER: Now, wait a minute. Wait a minute. The Constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?

Senator Specter was referring to 2nd Clause of Section 9 of Article One of the Constitution of the United States which reads: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." This passage has been historically interpreted to mean that the right of habeas corpus is inherently established.

As Robert Parry writes in the Baltimore Chronicle & Sentinel:

"Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully. Ironically, Gonzales may be wrong in another way about the lack of specificity in the Constitution’s granting of habeas corpus rights. Many of the legal features attributed to habeas corpus are delineated in a positive way in the Sixth Amendment…"

Further controversy over Gonzales ensued when it was revealed that the National Security Agency, the U.S. government's cryptologic intelligence agency, was engaged in eavesdropping of U.S. citizens without proper warrants. Problems continued with Executive Order 13233, drafted by Gonzales and issued by George W. Bush on November 1, 2001 shortly after the September 11, 2001 attacks, attempted to place limitations on the Freedom of Information Act by restricting access to the records of former presidents.

In Part III we will explore the further consolidation of power in the Executive with a tool called signing statements. The use of signing statements began in earnest with President Ronald Reagan, quickened under Presidents George H.W. Bush and William Clinton, and have flourished under George W. Bush. As they have often been used over recent decades, will they prove to our reader a tool for conservative, Constitutional governance? Part III will push us to some conclusions and also, I hope, a beginning for some of the readers.

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